ROBERT ADAM BROWN, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6793
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1-10) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 27,
1989. The petition for a writ of certiorari was filed on February 27,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTIONS PRESENTED
1. Whether, in a prosecution for arson involving the use of
gasoline, police officers' responsibility for the destruction of
certain gasoline found at the crime scene violated the Due Process
Clause.
2. Whether the limitation of petitioner's cross-examination of the
victim about her service as an informant and the preclusion of
testimony by a defense witness on that subject violated the
Confrontation Clause and the Compulsory Process Clause of the Sixth
Amendment.
STATEMENT
After a jury trial in the United States District Court for the
Northern District of Oklahoma, petitioner was convicted on one count
of attempting to damage or destroy a building used in an activity
affecting interstate commerce, by means of fire or an explosive, in
violation of 18 U.S.C. 844(i), and one count of possessing an
unregistered destructive device, in violation of 26 U.S.C. 5861(d) and
18 U.S.C. 5845(a) and (f). He was sentenced to concurrent terms of
six years' imprisonment. The court of appeals affirmed. Pet. App.
1-10.
1. The evidence at trial showed that Bonnie Jones and her husband,
Sherman Jones, from whom she was legally separated, were co-owners of
the Country Keg, a tavern located outside of Claremore, Oklahoma. /1/
As part of the separation order entered on December 10, 1987, the
state court awarded Bonnie temporary custody of the Keg and barred
Sherman from entering either the tavern or the adjacent trailer in
which Bonnie lived. Sherman, upon learning of the court order,
confronted Bonnie at the Keg and threatened that he would "see the Keg
blowed up or burnt down before you get it." 1 Tr. 50. Petitioner, who
was Sherman's best friend, accompanied him. Shortly thereafter,
someone telephoned Bonnie and told her that she was "a dead bitch for
trying to screw Sherman out of the Country Keg." 1 Tr. 51. According
to Bonnie, the caller sounded like petitioner. Pet. App. 2, 7; Gov't
C.A. Br. 2-3, 9, 42.
About a month later, at 1:30 a.m. on January 13, 1988, Bonnie heard
a vehicle idling loudly outside the Keg. The vehicle drove away with
its lights off. The vehicle returned ten minutes later, and again
drove away with its lights off. As the vehicle drove onto the highway
in front of a passing car, Bonnie recognized it as petitioner's
pick-up truck. Bonnie then walked over to the Keg, where she smelled
smoke, gasoline, and burned grass. With a flashlight, she also found
an "Always Save"-brand pickle jar partially filled with gasoline on
the ground. Bonnie called the sheriff, and then heard the pick-up
again driving toward the Keg. She shined her flashlight on the driver
from about ten feet away and saw petitioner as he put his hand over
his face. Bonnie called the sheriff again, identifying petitioner as
the person who had tried to burn down the Keg. Pet. App. 2; Gov't
C.A. Br. 4-6, 9-10, 42-43.
Two deputy sheriffs arrested petitioner several minutes later as he
was driving down the highway about five miles west of the Keg. He
smelled strongly of gasoline. In the bed of his pick-up, the deputies
found two cigarette lighters, gloves, rags, a partially filled
one-gallon gas can, and a nearly empty five-gallon gas can. Pet. App.
3; Gov't C.A. Br. 6-7, 10, 43. /2/ The deputies who inspected the
Keg that night detected a strong odor of gasoline around the building
and noticed that several areas of the roof had been burned. They
retrieved the pickle jar that Bonnie had discovered. On the roof, the
deputies found the jar's lid, which had a hole cut through it; stuck
through the hole was a partially burned lamp wick wet with gasoline.
Fully assembled, the jar, gasoline, and wick constituted a Molotov
cocktail, an incendiary device. /3/ Two days later, ATF agents
executed search warrants at petitioner's house and a closed-down bar
he owned, which was located about two miles east of the Keg. At
petitioner's house, agents found oil lamps and an "Always Save"-brand
pickle jar identical to the Molotov cocktail jar found at the Keg. At
the bar, they found a kerosene lamp that was missing its wick, and a
jar similar to the Molotov cocktail jar, with a hole cut through its
lid. Pet. App. 2-3; Gov't C.A. Br. 8-10, 43-44.
Four days after the crime, deputy sheriffs searched the Keg again
as part of an unrelated investigation regarding Sherman Jones's
possession of firearms. See Gov't C.A. Br. 16 n.3. The deputies
found in a storeroom a small plastic container partially filled with
gasoline. Bonnie explained that the can belonged to some customers
who had used it the previous month to start a stalled truck in front
of the Keg. She had taken it from them after one of the men burned
himself trying to fix the truck; she had forgotten about the can
until the deputies found it. The deputies told her to remove the can.
Bonnie emptied the can by a nearby tree and left it there until Lyle
Copeland, the burned customer, retrieved it when he stopped by the bar
a few weeks later. Pet. App. 3; Gov't C.A. Br. 16-17; 1 Tr. 65-69;
2 Tr. 187-190, 214, 256-257. /4/
2. a. At trial, after Bonnie testified that she had discarded the
gasoline found in the storeroom, petitioner moved to dismiss the
indictment or, in the alternative, to strike her testimony on the
ground that she had destroyed "vital" evidence at the government's
direction. 2 Tr. 190. Petitioner argued that, if that gasoline had
been tested and shown to match the gasoline in the Molotov cocktail,
it would have exculpated him. See 2 Tr. 190-191. The district court
denied the motion without comment. 2 Tr. 191. The court later denied
petitioner's renewed motion, stating that it did "not find this
conduct from the evidence presented is of such an egregious nature to
dictate that the Court dismiss the testimony of Bonnie Jones." 3 Tr.
440.
b. Petitioner also sought to cross-examine Bonnie about what he
characterized as her "informant" activities on behalf of the sheriff's
office. Petitioner claimed that such activities "provided motive for
other people to be mad at (her)," 2 Tr. 180, and that one of those
persons might have been the arsonist. See Gov't C.A. Br. 11.
Alternatively, petitioner suggested that Bonnie herself might have
been the arsonist, and that the deputies had directed her to dispose
of the storeroom gasoline in order to protect her. See Gov't C.A. Br.
17. /5/ The district court precluded petitioner from questioning
Bonnie about her cooperation with the sheriff's office "because there
is no way to determine whether or not that bore any sort of fruit of
animosity in the community and that is too speculative." 2 Tr. 180.
Nonetheless, the court made clear that petitioner had wide latitude to
explore other matters that bore on Bonnie's credibility. See 2 Tr.
180.
In a similar vein, petitioner proffered the testimony of Sherry
Moore, Bonnie's sister. In an offer of proof, Moore testified that, a
few months before the crime, Bonnie had told her that she feared for
her life because she had "snitched" on a drug dealer named Cindy
Bates. 3 Tr. 481-483. Petitioner sought to present Moore's testimony
to show that Bonnie was an informant and thus raise "the possibility
of other people having motivation (to commit the arson)." 3 Tr. 472.
The court refused to allow the testimony, concluding that it was not
relevant to the truth or falsity of any witness's testimony and that
it was too speculative, since there was no indication that the drug
dealer was aware that anyone, much less Bonnie, had "snitched" on her.
3 Tr. 483-488.
3. The court of appeals affirmed. Pet. App. 1-10. In the court of
appeals, petitioner contended (Pet. C.A. Br. 24-35) that the
destruction of the storeroom gasoline deprived him of potentially
exculpatory evidence in violation of the Due Process Clause. The
court of appeals stated that, under California v. Trombetta, 467 U.S.
479, 489 (1983), relief is available only where the destroyed evidence
"possess(es) an exculpatory value that was apparent before it was
destroyed, and * * * (is) of such nature that the defendant would be
unable to obtain comparable evidence by other reasonable means." Pet.
App. 4. Here, the court determined, the exculpatory potential of the
storeroom gasoline rested on petitioner's "wholly * * * speculati(ve)"
assertion that Bonnie had tried to burn her own building with the
gasoline. Id. at 5. Moreover, the court explained, since Bonnie was
not a suspect in the arson when the deputies searched the Keg, "any
exculpatory value that the gas container possessed was not apparent to
the sheriffs at the time the gas was discarded." Ibid. Petitioner
therefore had not met his burden under Trombetta. In any event, since
the deputy sheriffs directed Bonnie to discard the gasoline out of a
legitimate concern for her safety from a possible fire hazard, the
court concluded that "the record reveals no evidence of bad faith by
the sheriffs." Ibid. Under Arizona v. Youngblood, 109 S. Ct. 333, 337
(1988), petitioner therefore was not entitled to relief.
Petitioner also contended (Pet. C.A. Br. 35-47) that the district
court's limiting his cross-examination of Bonnie about her service as
an informant and precluding Moore's testimony on that subject violated
the Confrontation Clause and the Compulsory Process Clause of the
Sixth Amendment. The court of appeals rejected petitioner's challenge
to the cross-examination ruling, concluding that "(w)hether Bonnie
Jones informed on a drug dealer is, at best, tangential to her
testimony surrounding the attempted arson of the Keg." Pet. App. 6.
Moreover, the court determined that the trial court's ruling did not
prejudice petitioner, because she "was cross-examined extensively
concerning her veracity and a previous instance where she lied to a
judge was introduced into evidence," id. at 6-7, /6/ thus leaving the
jury "an adequate basis on which to assess Jones's credibility," id.
at 7.
The court of appeals also upheld the trial court's exclusion of
Moore's proffered testimony. On the record presented, the court
concluded, the trial court did not abuse its discretion in determining
that whether Bonnie "feared reprisals" from a drug dealer "had no
bearing on the truth of (her) testimony," Pet. App. 5, "was * * * not
relevant to her credibility," ibid., and was "too speculative to
warrant admission," id. at 6, particularly where, as here, "there was
no indication that the drug dealer knew that Bonnie Jones had been a
one-time informant," ibid. /7/
ARGUMENT
1. Petitioner renews his contention (Pet. 11-15) that the
destruction of the storeroom gasoline deprived him of potentially
exculpatory evidence in violation of the Due Process Clause. In
particular, petitioner asserts that the sheriff's deputies acted in
bad faith when they directed Bonnie Jones to discard gasoline that, in
his view, "belong(ed) to the 'victim,' who * * * could have been
proven to be the actual arsonist if the gasoline had been tested."
Pet. 11. In Arizona v. Youngblood, 109 S. Ct. 333, 337 (1989), the
Court emphasized that the police do not have "an undifferentiated and
absolute duty to retain and to preserve all material that might be of
conceivable evidentiary significance in a particular prosecution."
Similarly, in California v. Trombetta, 467 U.S. 479, 488 (1984), the
Court concluded that the constitutional duty to preserve evidence
"must be limited to evidence that might be expected to play a
significant role in the suspect's defense."
Here, as the court of appeals correctly determined, petitioner's
claim that the discarded gasoline was potentially exculpatory evidence
rested upon the "wholly * * * speculati(ve)" premise that Bonnie
herself had tried to burn down the Keg with it. Pet. App. 5. As
Youngblood and Trombetta make clear, however, such speculation does
not satisfy the constitutional standard of materiality that triggers
the government's duty to preserve evidence. Indeed, petitioner's
assertion that the discarded gasoline, if tested, "could have proven"
that he was not the arsonist relies upon the same standard of
materiality expressly rejected in Youngblood, 109 S. Ct. at 336 n. * *
-- "(t)he possibility that (the evidence) could have exculpated (the
defendant) if preserved or tested is not enough to satisfy the
standard of materiality in Trombetta." /8/
In addition, petitioner did not show that whatever exculpatory
value the gasoline might have had was apparent to the deputies before
it was discarded. Pet. App. 5; see California v. Trombetta, 467 U.S.
at 489; Arizona v. Youngblood, 109 S. Ct. at 337 n.** ("The presence
or absence of bad faith by the police must necessarily turn on the
police's knowledge of the exculpatory value of the evidence at the
time it was lost or destroyed."). Contrary to petitioner's assertion,
the gasoline was scarcely "suspicious." Pet. 14. The deputies had no
reason to believe that Bonnie was the arsonist -- and never considered
her a suspect, see Gov't C.A. Br. 18 n. 6 -- particularly in light of
the incriminating evidence seized from petitioner's truck at the time
of his arrest and the corroborating evidence later seized from his
house and tavern. And any conceivable "suspicion" surrounding the
gasoline was dispelled by Bonnie's contemporaneous explanation -- at
no time controverted by petitioner -- that she had taken it away from
a customer who had mishandled it in trying to start up his truck. See
p. 5, supra. /9/
Finally, petitioner's assertion (Pet. 10-14) that the deputies
acted in bad faith is belied by the record. The court of appeals, in
affirming the district court's determination, see 3 Tr. 440, found
that the record "reveals no evidence of bad faith by the sheriffs in
instructing Bonnie Jones to discard the gasoline; rather, they appear
to have acted out of concern for her safety," Pet. App. 5. There is
no reason to disturb those concurrent findings of both lower courts.
See, e.g., Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 318
n.5 (1985); Berenyi v. Immigration Director, 385 U.S. 630, 635-636
(1967). And petitioner ignores the record when he alleges that the
deputies "concealed" (Pet. 14) and "withheld" (Pet. 10) their
discovery from both the prosecutor and him. See 1 Tr. 24-28.
2. Petitioner also renews his contention (Pet. 15-17) that the
district court's limiting his cross-examination of Bonnie about her
service as an informant and precluding Moore's testimony on that
subject violated the Confrontation Clause and the Compulsory Process
Clause of the Sixth Amendment. According to petitioner, he sought to
show that Bonnie's informant activities gave the deputies a motive for
protecting her if she were in trouble, and that, if that motive were
taken into account, the jury might deduce that she was the arsonist.
Pet. 15. /10/
In Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), this Court
held that "(b)y * * * cutting off all questioning about an event that
(the government) conceded had taken place and that a jury might
reasonably have found furnished the witness a motive for favoring the
prosecution in his testimony, the court's ruling violated (the
defendant's) rights secured by the Confrontation Clause." /11/ The
Court made clear, however, that the defendant's right to cross-examine
is not absolute: "(T)rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally relevant."
Ibid.; see Davis v. Alaska, 415 U.S. 308, 316 (1974).
Here, as the court of appeals correctly determined, the line of
cross-examination that petitioner sought to pursue was "at best,
tangential to (Bonnie Sherman's) testimony surrounding the attempted
arson of the Keg." Pet. App. 6. The district court acted well within
its discretion in seeking to insure that jurors would not be misled or
confused by a series of attenuated inferences calculated to distract
them from the relevant evidence in the case. As the court of appeals
pointed out, see id. at 7, the jury received sufficient information to
make a discriminating appraisal of Bonnie's motives for testifying
against petitioner. Indeed, petitioner "cross-examined (Bonnie)
extensively concerning her veracity." Id. at 6. And petitioner fully
exploited the incident in which Bonnie first "informed" on her
husband's drug possession, pleaded guilty herself, and then withdrew
her plea. See id. at 6-7; see note 6, supra. On this record,
therefore, petitioner's challenge to the district court's limiting his
cross-examination of Bonnie Sherman rings hollows.
Petitioner's challenge to the district court's rejection of Sherry
Moore's proffered testimony fares no better. As this Court concluded
in United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1981), in
order to establish a violation of the Compulsory Process Clause, the
defendant "must at least make some plausible showing how (the
proffered) testimony would have been both material and favorable to
his defense." Accord Washington v. Texas, 388 U.S. 14, 16 (1967). In
this case, however, Moore's proffered testimony about Bonnie Moore's
one-time cooperation with the sheriff's department "was * * * not
relevant to her credibility," Pet. App. 5, and was "too speculative to
warrant admission," id. at 6, particularly where, as here, "there was
no indication that the drug dealer knew that Bonnie Jones had been a
one-time informant," ibid. /12/ In these circumstances, the courts
below properly rebuffed petitioner's attempt to introduce immaterial
evidence before the jury.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
VICKI S. MARANI
Attorney
MAY 1990
/1/ The evidence is summarized in the opinion of the court of
appeals, see Pet. App. 2-3, and in the government's brief filed in the
court of appeals, see Gov't C.A. Br. 2-15, 42-44.
/2/ At trial, Sherman Jones and another defense witness testified
that since the gas gauge in petitioner's pick-up was broken, he kept
extra gas on hand. 3 Tr. 446-447, 489-490.
/3/ A forensic chemist from the Department of the Treasury, Bureau
of Alcohol, Tobacco, and Firearms, compared samples of the gasoline in
the jar and the gasoline contained in one of the cans found in
petitioner's pick-up. 3 Tr. 394-397. He was not able to determine
conclusively whether the samples matched because the can had been
contaminated by various gasolines. The chemist, however, did not rule
out that possibility. 3 Tr. 397-398. Petitioner's bare statement
that the samples "did not match" (Pet. 9) is therefore misleading.
Petitioner also asserts misleadingly that hair samples and
fingerprints taken from him and compared to hair and fingerprints
"discovered on items at the Keg * * * did not match." Pet. 9. An ATF
fingerprint specialist testified that there were "no discernible,
identifiable fingerprints on the jar." 3 Tr. 422-423. As for the
alleged hair comparison, the forensic chemist explained that only one
strand of hair had been retrieved from the scene of the crime (i.e.,
from a burned rag found in the roof gutter), and that "one hair by
itself is not a valid basis by which we can make a comparison
analysis." 3 Tr. 398, 401. Moreover, the comparison hair had been
taken from petitioner's jacket and thus might not even have come from
petitioner. 3 Tr. 399. Even if a comparison hair had been taken from
petitioner's head, an accurate comparison might not have been
possible, because not every strand of hair is "totally representative"
of the rest of a person's hair. 3 Tr. 400-401.
/4/ As petitioner points out (Pet. 9), the court of appeals
mistakenly assumed that the deputies had discovered the gas can
"several weeks" after the crime. Pet. App. 3. The record makes clear
that the discovery occurred several days after the incident. See 2
Tr. 189, 256-257; Gov't C.A. Br. 16.
/5/ Bonnie was not an "informant" in the sense implied by
petitioner, i.e., that she was a steady source of information to the
sheriff's department. Her only "informant" activities consisted of
turning over to the sheriff's department drugs that she had found in
her husband's wallet and identifying the woman who had supplied them.
Petitioner neither introduced nor sought to introduce any evidence
that this woman knew or had reason to know of Bonnie's disclosures
about her. Gov't C.A. Br. 11.
/6/ The court of appeals referred to the fact that when Sherman
Jones threatened to kill Bonnie after she had turned over his drugs to
local authorities, she exonerated him, confessed to the crime, and
pleaded guilty to drug possession charges in state court. The state
court later permitted Bonnie to withdraw that plea after hearing
evidence of her duress. See Gov't C.A. Br. 11-15.
/7/ The court of appeals also rejected petitioner's claims that the
district court erroneously admitted Bonnie's testimony about her
husband's threats and the threatening telephone call into evidence,
Pet. App. 7-8, and that the government had not presented sufficient
evidence of the charged offenses, id. at 9-10. Petitioner has not
sought further review of those claims.
/8/ In Arizona v. Youngblood, supra, a child sexual assault
prosecution, the Court upheld the state court's determination that
police officers had not acted in bad faith by failing properly to
preserve and test clothing and swabs containing semen samples. 109 S.
Ct. at 337. Petitioner tries (Pet. 13) to distinguish Youngblood,
noting that the police conduct at issue there had been at most
negligent, whereas here, the deputies had intentionally ordered the
gasoline disposed. That asserted distinction is irrelevant, since the
gasoline had no apparent exculpatory value.
/9/ Even assuming that the gasoline's exculpatory value was
apparent to the deputies, petitioner has not shown any prejudice.
Petitioner concedes that he was able to argue to the jury that the
"gasoline, if tested, might have compared positively to the gasoline
from the Molotov cocktail." Pet. 14. He claims only that he was
unable to make this argument "effectively." Ibid. That sort of
circumstance, however, is not tantamount to prejudice. See Arizona v.
Youngblood, 109 S. Ct. at 338 (Stevens, J., concurring in the
judgment) (prejudice unlikely where defense counsel impressed upon
jury fact that tests might have exonerated defendant).
/10/ Petitioner has abandoned the principal argument he raised
below in support of his Sixth Amendment claims, namely, that Bonnie's
informant activities "provided motive for other people to be mad at
(her)," 2 Tr. 180, and that one of those persons might have been the
arsonist. See Gov't C.A. Br. 11.
/11/ Here, of course, the government never even conceded that
Bonnie was an "informant" in the sense implied by petitioner. See
note 5, supra.
/12/ Petitioner asserts that the district court's rulings were
"similar to the dual denial of the right to cross-examine a hostile
witness and the exclusion of a defense witness held by this Court to
be a denial of due process in Chambers v. Mississippi, 410 U.S. 284,
298, 302 (1973)." Pet. 17. That assertion is wide of the mark. In
that murder prosecution, the state's common law "voucher" rule
precluded Chambers from cross-examining his own witness about the
latter's three prior oral confessions -- and his renunciation of a
written confession -- to the crime for which Chambers was on trial.
The state trial court also prohibited Chambers, on hearsay grounds,
from calling three persons to testify to the witness's confessions.
The evidence at issue in Chambers thus bore directly on the
defendant's guilt or innocence. By contrast, the evidence excluded
here -- testimony regarding Bonnie Jones's one-time cooperation with
the sheriff's department -- was plainly collateral to any relevant
issue in dispute.